Lal Mohammad Khan vs Mahanth Krishna Dayal Gir

Das, J.—These appeals are on behalf of tenants and arise out of proceedings u/s 106 of the Bengal Tenancy Act. It appears that at the attestation the tenants claimed Sharah Moaiyan status with reference to every portion of the holdings held by them but that their claim was rejected on the ground that portions of the land consisted of bhowli converted since the permanent settlement. They raised the question again u/s 103(a) of the Tenancy Act. Their claim was again disallowed as the documents on which they relied were not accepted, and as they could not identify the lands as to which they claimed Sharah Moaiyan status. They then commenced this action u/s 106 of the Bengal Tenancy Act. In their plaint they enumerated the Khasra plots as to which they claimed the Sharah Moaiyan status and they asked the Court to declare that the entry in the Record of Rights recording them as kaemi tenants is erroneous and that they should have been recorded as fixed rate tenants with reference to these plots of land and they asked for further consequential reliefs. The lower Appellate Court has come to these conclusions, first, that the tenants have established the fact that they have paid one rental for one area or where the area has varied then one rate for the cash rent holding for 20 years and so raised in their favour presumption u/s 50, sub section 2, of the Bengal Tenancy Act: secondly, that admittedly a portion of the holding is bhowli land converted into a cash paying rent some time previous to these twenty years, and thirdly, the tenants have not been able by their evidence to identify the Khasra plots as to which they claimed Sharah Moaiyan status. These findings are binding on me in second appeal, but in the very able arguments which have been advanced before me learned Counsel appearing on behalf of the appellants has insisted that, upon the finding that the tenants have succeeded in establishing the fact that they have held at a fixed rent for 20 years, it was for the landlord to show that the holdings claimed by the tenants as fixed rate holdings were not in fact fixed rate holdings. He puts his argument in this way. The evidence shows, evidence which has been accepted by the lower Appellate Court, that the entire areas held by the tenants are fixed rate areas but he gives up his claim with reference to portions of that area. Therefore, the remaining portion, must be held to be fixed rate portions, unless the landlord succeeds in proving that they are not fixed rate portions.

The argument is an ingenious one, but in my opinion it does not deserve success. In order to enable a Court to come to the conclusion that the tenant is a fixed rate tenant it must be established that he has held at a rent or rate of rent which has not been changed from the tine of the permanent settlement. No doubt section 50, sub section 2, lays down a convenient rule in view of the fact that it is almost impossible for the tenant to prove that he has held at a rent or rate of rent which has not been changed from the time of the permanent settlement. The Legislature has laid down a convenient rule in sub-section 2 of section 50 that the Court shall presume that he has held at a rent or rate of rent from the time of the permanent settlement if he proves that he has held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution of the suit or proceedings. It must be remembered that the rule laid down in sub-section 1 is a rule of law, whereas the rule laid down in sub-section 2 is a rule of evidence which merely raises a presumption that the conditions laid down in sub section I have been satisfied. In my opinion as soon as it is conceded that the rule laid down in clause 2 is a rule of evidence, it must follow that anything which affects any portion of that evidence must affect the remaining portion of that evidence. In this case the evidence, if it can be accepted, goes to show that the entire area is held at a fixed rate; but it is conceded that a portion of it is not held at a fixed rate. In my view it is impossible to come to the conclusion that the remaining portion of the land is held at a fixed rate. The plaintiff comes to Court with a specific case that he holds specific plots of land at a fixed rate. The lower Appellate Court has come to the conclusion that he has not been able to satisfy that Court that he has held those specific plots of land which he has enumerated in his plaint at a fixed rate. In my view, therefore, this appeal must fail and is dismissed with costs.

The judgment will govern all the analogous appeals.